http://blogs.law.harvard.edu/corpgov/2008/01/17/stoneridge-and-the-legislative-role-of-the-supreme-court/ Sponsored by the HLS Corporate Governance Program Wed, 09 Jul 2008 13:18:47 +0000 http://wordpress.org/?v=wordpress-mu-1.2.1 http://blogs.law.harvard.edu/corpgov/2008/01/17/stoneridge-and-the-legislative-role-of-the-supreme-court/#comment-15537 John F. Olson Tue, 22 Jan 2008 19:23:47 +0000 http://blogs.law.harvard.edu/corpgov/2008/01/17/stoneridge-and-the-legislative-role-of-the-supreme-court/#comment-15537 As usual, Larry Hamermesh has it right. The real "legislative" action by the federal courts was implying private rights of action in cases, such as the 1934 Act, where Congress was silent on the subject. In 1975, in Cort v. Ash, the Court wisely moved decisively away from liberal implication of private rights not explicitly provided by Congress in an opinion by Justice Brennan (not exactly an enemy of the common law or a "stict constructionist"). Robert Brown would like to turn back the clock to the pre-1975 world of easy implication, and ready expansion of rights once implied. That train was derailed long ago, and nostalgia, and a romantic view of the supposed Robin Hood-like virtues of the wealth transfer experts in the plaintiffs' bar, won't bring it back. As usual, Larry Hamermesh has it right. The real “legislative” action by the federal courts was implying private rights of action in cases, such as the 1934 Act, where Congress was silent on the subject. In 1975, in Cort v. Ash, the Court wisely moved decisively away from liberal implication of private rights not explicitly provided by Congress in an opinion by Justice Brennan (not exactly an enemy of the common law or a “stict constructionist”). Robert Brown would like to turn back the clock to the pre-1975 world of easy implication, and ready expansion of rights once implied. That train was derailed long ago, and nostalgia, and a romantic view of the supposed Robin Hood-like virtues of the wealth transfer experts in the plaintiffs’ bar, won’t bring it back.

]]> http://blogs.law.harvard.edu/corpgov/2008/01/17/stoneridge-and-the-legislative-role-of-the-supreme-court/#comment-15435 Larry Hamermesh Fri, 18 Jan 2008 01:13:18 +0000 http://blogs.law.harvard.edu/corpgov/2008/01/17/stoneridge-and-the-legislative-role-of-the-supreme-court/#comment-15435 Putting aside the wisdom of the result and reasoning in Stoneridge, it's hard for me to understand criticizing the Court for acting "legislatively" in restricting 10b-5 civil suits when those suits themselves were creations of the courts in the first place. The courts giveth, the courts taketh away (or refuseth to add). Putting aside the wisdom of the result and reasoning in Stoneridge, it’s hard for me to understand criticizing the Court for acting “legislatively” in restricting 10b-5 civil suits when those suits themselves were creations of the courts in the first place. The courts giveth, the courts taketh away (or refuseth to add).

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